Island of no consent – maternity care and bodily autonomy in Ireland

This piece was previously published in the print version of the Irish Anarchist Review

On the last day of August 2014, in a ruling the country and the media barely noticed, Mr Justice Ryan in the High Court in Kerry found against Ciara Hamilton and for the HSE in an utterly terrifying moment for every person pregnant or giving birth in Ireland from here on out. Ciara Hamilton had taken a case against the Health Service Executive after the birth of her second child, during which a midwife had, without obtaining consent, broken her waters, leading to an umbilical cord prolapse and an emergency caesarean section.

The breaking of waters during labour, in medical terms amniotomy or Artificial Rupture of Membranes (ARM), is not recommended best practice precisely because it can lead to a cord prolapse, which is a serious emergency when giving birth as it cuts off the blood flow and air supply to the baby. If the person giving birth is a Strep B carrier (as Ciara Hamilton was) it can also carry an increased risk of Strep B transferring to the newborn and causing serious damage to the baby (as happened to Ciara Hamilton’s child). It is listed as a Do Not Do under NICE recommendations. Despite this, and despite ARM being known to carry dangers and risks to both birthing woman and baby, it is still a widely carried out procedure in many Irish maternity hospitals. In the case of Ciara Hamilton’s birth, it was a procedure carried out by a midwife without seeking consent to do so.

This, too, despite being obviously grossly unethical and a fundamental violation of both human rights and bodily autonomy, is something which routinely occurs in Irish maternity hospitals. In the spring of 2014, AIMS Ireland carried out a survey of those who had given birth in Ireland between 2010 and 2014. The survey was available to be filled out online, and was spread through various social media channels, as well as through media coverage. The pool of respondents was a self-selecting one, and numbered 2,836. It found that only half of all those giving birth – 50.2% of respondents – were given an opportunity to refuse tests, procedures or treatments being carried out on them. This is a truly frightening figure. What is, however, more frightening, was the wording of Mr Justice Ryan’s finding against Ciara Hamilton.

“Mrs Hamilton would have seen the hook and would have known what was going to happen because of the sheet that was put under her in bed. Since, on the evidence, this was a routine procedure that Ms Kelliher was carrying out for the purpose of diagnosis to see if her fear of foetal distress was justified or not, it does seem strange that she would not have mentioned to the patient what she was going to do and have obtained her consent. The very fact that it was so routine suggests that the midwife would have done so. I am satisfied that the probability is that Midwife Kelliher obtained the plaintiff’s consent and informed her about the ARM that she was going to perform.”

What the judge has here concluded is that the midwife obtained consent because she should have done so – and that a woman giving birth who had consented only to a vaginal examination, NOT an ARM, should have known that ARM would have happened because of the presence of an amnihook and a sheet. This is a truly bizarre conclusion. Why would a person giving birth be assumed to be able to identify an amnihook – a specialised piece of medical equipment – and further be assumed to know that it would mean an ARM would be carried out on them without having been consulted or informed about the risks and benefits of the procedure? Again, this judge with no evidence to prove this assumption – and indeed the more recently published evidence from AIMS shows that not giving women a chance to refuse procedures is a large part of normal practice – asserts that a health care provider would have obtained consent because they should have done so, with no onus on the healthcare provider to prove evidence of informed consent being obtained. The fact that Ciara Hamilton testified to the fact that she was not given an opportunity to consent to an amniotomy is not even mentioned by the judge in this decision. Even more disturbingly, he goes on to say:

“The patient’s co-operation was needed in terms of re-positioning on the bed, the procedure might take some time and the implement was quite long, so it is not something that a person would or could do without the knowledge of the patient. The plaintiff got into position, was co-operative and consented to the vaginal examination. Ms Kelliher used a hook and gel and of course surgical gloves. She put a sheet under the plaintiff and got her to move down in the bed and discussed with the plaintiff what she was going to do. Midwife Kelliher said that she “would have discussed”, but in my view that was a matter of usage and she clarified that she actually meant, not that she would have in the sense of describing a practice in a conditional sense, but that she did with Mrs Hamilton.”

Mr Justice Ryan is here saying that Ciara Hamilton positioned herself in such a way as to consent to an ARM. She consented to the vaginal examination and moved down the bed. Is this really so different from the “short skirt” argument put before courts in trials of other forms of violation of women’s bodies? Yet again, with no proof, he asserts that an ARM could not be carried out without the knowledge of the person giving birth, despite the evidence of a woman who had undergone it that indeed it had been. AIMS Ireland has heard from many, many more women around the country who have had nonconsensual amniotomies – and indeed many other procedures – performed without their knowledge. This is a far from rare occurrence; yet the voice of the woman upon whose body this was perpetrated is once again, in the arena she sought redress for her exclusion from the decisions being made about her body and her birth, being spoken over, ignored, and deemed uninformed, inconsequential, and irrelevant.

But by far the most frightening aspect of all in this case is that, despite clearly stating in his ruling that Ciara Hamilton had “underwent a frightening and disturbing experience that would leave long term troubling recollections”, Mr Justice Ryan punitively awarded the full costs of the HSE’s defence against her and her family. This was unarguably a move designed to discourage other women and people who have experienced violations of their consent during pregnancy and birth from pursuing legal action against those responsible. A move meant to punish a woman and her family who did dare to speak up against the unacceptable, indefensible treatment AIMS Ireland hear of in Irish maternity wards all too often, and whose experiences, as before during their birth, were once again ignored by the State and its enforcers, quite literally judged to be meaningless. The truth of what happened to Ciara Hamilton and her recounting of it and its consequences for her and her son was callously dismissed by a judge who simply refused to believe it because he thought it shouldn’t happen.

What this ruling means is that it is now legally not a requirement for any Irish maternity ward or healthcare provider to prove either that a procedure is necessary for the person giving birth or the baby they’re giving birth to, or that they obtained informed consent from the person giving birth to carry out that procedure. In a country in which pregnant women are specifically excluded from the HSE’s National Consent Policy as being the final arbiter of what happens to their own bodies, with the High Court cited instead as the appropriate decision maker for these cases, this ruling is a further reminder to anyone with a uterus that if they are, or if they should become pregnant, they are no longer in control of their own body. They are lesser; they do not own themselves. Instead the State owns them.

This, of course, is in part a consequence of the 8th amendment; but it’s also in part a consequence of a larger prevailing attitude in maternity care in Ireland, that women in general and specifically women who are pregnant and giving birth are not trustworthy decision makers and cannot be allowed to make choices around their pregnancies and births as they cannot be trusted to be concerned with a safe outcome for their baby. This is bizarrely at odds with the State and HSE attitude to those who have given birth; they become at once the only possible caretaker for that child, not in need of any support or care in so doing, left entirely alone to do so with no formalised system of support around them even when they look for the assistance of one. Again, Ciara Hamilton and her family are an example of this; a family who need specialised supports for their son, damaged due to the poor management of his birth, they live in a state that will do its utmost to avoid shouldering the cost of it and avoid recognising Ciara Hamilton’s son as a valued member of our society who should be provided with all that he needs in order to allow him to participate in that society in a just and equal way. Now both they and he have been further punished for their attempt to right that balance and address the wrong done to him and his mother during their birth. For a family to be faced with the crippling financial burden that is the HSE’s extravagant legal costs of defending a birth claim will further deepen the gap between what their child needs and what they can afford to give him. Their situation is a haunting and horrific one that should never have been allowed to happen, and in many other jurisdictions never would have.

Contrasting the judgement in the Hamilton vs HSE case with a recent UK Supreme Court judgement, Montgomery v Lanarkshire Health Board, is an exercise designed to induce both heartbreak for the Hamiltons and rage on behalf of all pregnant women in Ireland. In this ruling, the Supreme Court held there exists for those giving birth an explicit right to information about ‘any material risk‘ in order for them to make fully informed decisions on the process; without this information being provided, informed consent cannot be said to have been given. In this instance, Nadine Montgomery was pregnant, diabetic, carrying a large foetus and was not informed by her doctor of her increased risk of shoulder dystocia, which is, in the words of an expert witness of the case, “a major obstetric emergency associated with a short and long term neonatal and maternal morbidity [and] an associated neonatal mortality”. She did indeed experience a shoulder dystocia during birth, which was a horrendously traumatic experience for her and caused severe long term brain damage to her son.

Despite the fact that Nadine Montgomery had repeatedly expressed concerns about giving birth vaginally, her doctor said that she as a matter of course chose not to explain the risk of shoulder dystocia to diabetic women because the risk of serious injury to the baby was very small and that if she did, “then everyone would ask for a caesarean section”. The doctor makes no mention of the risk to women’s health and wellbeing of shoulder dystocia in her decision making.

A key and obvious difference here between the Montgomery case and the Hamilton case already is that the very concept of explaining risk of interventions, or of not performing interventions, to women is discussed at all in the Montgomery case. It does not appear at all in the Hamilton vs. HSE judgement. Given Mr Justice Ryan’s discussion of how Ciara Hamilton was treated it is probably safe to assume that informed consent is completely outside his frame of reference – again, a terrible but unsurprising indictment of the Irish maternity system as well as the Irish court system. The idea of informed consent literally does not make any showing here. Extensive discussion of the idea of informing women and how that should best be performed by healthcare providers takes place in the Montgomery case and yet the Hamilton judgement does not mention this concept even once.

In stark contrast, not only was the concept of informed consent discussed at length during the hearing of the Montgomery case itself, but it is also given a strong legal definition and set of requirements in the ruling itself.

“An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken. The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it.”

The final and deepest cut of bitter envy from the Montgomery judgement to those of us in Ireland forced into the maternity system here, comes from Lady Hale’s part of the judgement, thus making it case law in the UK from the highest court in the land. It is as follows:

“In this day and age, we are not only concerned about risks to the baby. We are equally, if not more, concerned about risks to the mother. And those include the risks associated with giving birth, as well as any aftereffects. One of the problems in this case was that for too long the focus was on the risks to the baby, without also taking into account what the mother might face in the process of giving birth.”

Could any paragraph and context more succinctly highlight the appalling gap between the treatment of pregnant women in Ireland and the expected sheer basics of human rights of pregnant women elsewhere in the world?

Unfortunately not; the Hamilton family (completely understandably) didn’t take up their window of appeal opportunity to the Supreme Court here as presumably they didn’t have the emotional and financial resources to do so. You have to have exhausted the legal avenues open to you in your own country before pursuing a European appeal. Very sad for them.